PRODUCTION AND EFFECT OF EVIDENCE
BURDEN OF PROOF
101 Burden of proof cite [+]
(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
ILLUSTRATIONS
(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true.
A must prove the existence of those facts.
102 On whom burden of proof lies cite [+]
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
ILLUSTRATIONS
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father.
If no evidence were given on either side, B would be entitled to his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
103 Burden of proof as to particular fact cite [+]
The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
ILLUSTRATIONS
(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.
(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.
104 Burden of proving fact to be proved to make evidence admissible cite [+]
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence.
ILLUSTRATIONS
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove by secondary evidence the contents of a lost document.
A must prove that the document has been lost.
105 Burden of proving that case of accused comes within exceptions cite [+]
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.
ILLUSTRATIONS
(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act.
The burden of proof is on A.
(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances, bringing the case under section 335, lies on A.
106 Burden of proving fact especially within knowledge cite [+]
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
ILLUSTRATIONS
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
107 Burden of proving death of person known to have been alive within thirty years cite [+]
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108 Burden of proving that person is alive who has not been heard of for seven years cite [+]
When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
109 Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent cite [+]
When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.
110 Burden of proof as to ownership cite [+]
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
